Owen v. McDermott

• Decision Date: 30 June 1906
• Citation: 148 Ala. 669,41 So. 730
• Parties: OWEN v. MCDERMOTT ET AL.
• Court: Alabama Supreme Court

41 So. 730

148 Ala. 669

OWEN v. MCDERMOTT ET AL.

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"Not officially reported."

Action by Frank L. Owen against Mike McDermott and others. From an order and judgment granting a new trial, plaintiff appeals. Affirmed.

McAlpine & Robinson, for appellant.

Mitchell & Tonsmeire, for appellees.

DENSON J.

This suit was brought by the plaintiff, Frank L. Owen, against three defendants. The cause was discontinued as to the defendant Thorne; she not having been served with process. There was a verdict and judgment in favor of the plaintiff against the other two defendants. On motion made by the defendants, the verdict was set aside, and the defendants were granted a new trial. From the order and judgment granting the new trial the plaintiff appealed.

On the trial one of the defendants was asked this question: "Do you owe Mr. Owen any sum for transportation, or not?" The plaintiff objected to the question on the grounds that it called for a conclusion of the witness and that it was incompetent. The court sustained the objection, and the defendants reserved an exception to the ruling of the court. This ruling of the court was assigned in the motion as one of the grounds for a new trial. The foundation of the plaintiff's cause of action was a claim of $238 for transportation from New York to Mobile, alleged to have been furnished at the request of the defendants by the plaintiff to four members of the "Thorne Opera Troupe." The plaintiff had given evidence tending to show that he had furnished the transportation as alleged and that it was worth the amount claimed. Whether or not the defendants owed plaintiff for the transportation was a matter within the knowledge of the defendants, and testimony that they did not owe plaintiff would not have been a conclusion, but a collective fact, and it would also have been competent evidence. The witness would have been subject to cross-examination as to the answer he would have given. The court erred in sustaining the objection. Shrimpton v. Brice, 109 Ala. 640, 20 So. 10; Hood v. Disston, 90 Ala. 377, 7 So. 732; Turnley v. Hanna, 82 Ala. 139, 2 So. 483; Elliott v. Stocks, 67 Ala. 290; Massey v Walker, 10 Ala. 290. And it was within the power of the court to grant a new trial on account of this error committed against the defendants.

But without discussion of...